Administrative Review Tribunal Bills 2023
The Law Council of Australia welcomes the opportunity to assist the House of Representatives Standing Committee on Social Policy and Legal Affairs in its inquiry into the Administrative Review Tribunal Bill 2023 (Cth) (ART Bill) and the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023 (Cth) (Consequential Bill)—together, the Bills.
Australia’s administrative review system provides a critical layer of accountability that protects individuals against the unfair and arbitrary use of public power, ensures public confidence in government, and enables informed and accessible participation in legal processes. For this reason, the Law Council supports the establishment of the Administrative Review Tribunal in the place of the Administrative Appeals Tribunal (AAT) and welcomes the requirement that the Tribunal must pursue an objective of providing an independent mechanism of review that:1
- is fair and just;
- ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits;
- is accessible and responsive to the diverse needs of parties to proceedings;
- improves the transparency and quality of government decision-making; and
- promotes public trust and confidence in the Tribunal.
The Law Council welcomes the key features of the Bills that are directed towards achieving the above objectives of the Tribunal, particularly:
- a simple membership structure with clear qualification requirements and role descriptions for each level of membership;
- clear and delineated roles and responsibilities for those who hold leadership positions in the Tribunal;
- a transparent and merit-based appointment process for members, informed by the operational needs of the Tribunal;
- the strengthening of the role of the President by:
- introducing express powers of the President to manage the performance, conduct and professional development of members;
- clarifying the division between functions of the Principal Registrar and the President; and
- incorporating a consultative process by establishing a Tribunal Advisory Committee to advise the President.
- a user-focused design, including simpler and more consistent processes, and an emphasis on non-adversarial approaches to resolving applications, and safeguards to ensure representatives comply with their obligations;
- a suite of powers and procedures that contemplate harmonisation across the Tribunal to respond flexibly to changing caseloads;
- mechanisms to identify, escalate and report on systemic issues in administrative decision-making; a guidance and appeals panel, to improve the quality and consistency of Tribunal decision-making by providing for second tier review, where appropriate, and identification of systemic issues suitable for determination at a second tier;
- the reinstatement of the Administrative Review Council (ARC); and
- the abolition of the Immigration Assessment Authority (IAA).
However, this submission seeks to draw the Committee’s attention to a variety of matters where the Bills would benefit from refinement and further justification.